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September 25, 2019

New York State Comptroller Thomas P. DiNapoli Releases Audits


On September 24, 2019, New York State Comptroller Thomas P. DiNapoli announced the following audits and examinations have been issued.

Office of General Services (OGS): Compliance With Executive Order 88: Energy Efficiency of State Buildings (2018-S-62) OGS has developed targets and plans to contribute toward EO 88 and complied with the guidelines. However, OGS relied on one project to provide the majority of its energy savings. This project has met criticism from environmental and community advocates because of health concerns related to the burning of natural gas, and its implementation is currently in doubt. Should the project fail to move forward, it is unlikely that OGS will meet its goal of reducing energy usage by 20 percent.

An initial audit released in February 2018 found MCOs improperly paid $50.3 million to providers who were excluded from the Medicaid program or who were otherwise ineligible to receive Medicaid payments. Auditors also identified 22.5 million MCO claims (totaling over $2 billion) that lacked the provider identification information needed to assess the propriety of payments. In a follow-up, auditors found DOH officials made some progress in addressing the problems identified in the initial audit.

An initial audit issued in March 2018 examined the adequacy of state agencies’ continuity of operations planning for major unexpected events. Auditors tested a sample of 11 agencies, finding they had incorporated certain essential features of the COOP best practices endorsed by the division. Auditors also identified some opportunities for improvements. In a follow-up, auditors found the division implemented the recommendations in the original report.

Division of Housing and Community Renewal (DHCR): Enforcement of the Mitchell-Lama Surcharge Provisions (Follow-Up) (2019-F-9) An initial report issued in April 2018 found DHCR in general properly assessed surcharges at Mitchell-Lama housing developments, but there were significant deficiencies in the processes used. In a follow-up, auditors found that DHCR has made some progress in addressing the issues previously identified.

In general, ITS is monitoring IT services procured from consultants and contract staff to ensure compliance with contract terms and deliverables. For 14 of the 20 contracts reviewed, ITS provided adequate oversight to ensure that the contractor or consultant was fulfilling the contract. For the remaining six contracts, for which ITS paid out more than $156 million, there were deficiencies in contract monitoring – primarily of contractors’ reporting and documentation requirements.

Auditors identified 2,115 unemployment insurance overpayments totaling $788,487. Based on the findings, the department assessed penalties valued at $1,110,430 against certain claimants who received the overpayments. Auditors also identified 267 underpayments totaling $48,728.

An initial report issued in April 2018, found the department lacked policies and procedures to guide its complaint investigations, resulting in missing documentation, inconsistent application of the law, delayed investigations of state-operated facilities, and poor communication with complainants. In a follow-up, auditors found the department has made some progress in addressing the problems identified.

An initial report issued in April 2018, determined that preventive maintenance was not performed within the scheduled frequency levels set by MTA’s New York City Transit unit. Transit did not establish a timetable for preventive maintenance for intercoms passengers can use to obtain emergency assistance. Additionally, repairs were not always done on time. In a follow-up, auditors found the MTA made progress in addressing the problems identified.

An initial report issued in April 2018, determined that SIR did not always perform the inspection and maintenance of security equipment on a timely basis. In September 2017, SIR officials developed a new maintenance procedure for security equipment. However, it was unclear if the new procedure included customer assistance intercoms. In a follow-up, auditors found that the MTA made progress in addressing the problems identified.

Auditors performed certain procedures to ascertain the expenses the department incurred in administering the acts for the four State Fiscal Years ended March 31, 2018. On average, the department incurred $20.4 million in expenses to administer the acts for each year.

Bilingual is a New York City-based for-profit organization authorized by SED to provide preschool Special Education Itinerant Teacher (SEIT) services to children with disabilities who are between the ages of three and five years. In addition to the SEIT program, Bilingual operated one other SED-approved preschool special education program. For the three fiscal years ended June 30, 2015, auditors identified $370,685 in reported costs that did not comply with reimbursement requirements.

The TRA’s financial statements represent, in all material respects, the respective financial position of the TRA for the five fiscal years ending March 31, 2018.

Springbrook is an SED-approved special education provider located in Otsego County. Springbrook provides, among other programs, preschool special education services to children with disabilities who are between three and five years of age. For the fiscal year ended June 30, 2015, auditors identified $56,183 in ineligible costs that Springbrook reported for reimbursement. 

An initial audit released in February 2018 found SUNY should improve its oversight of campus foundations. For example, it did not ensure each campus had an executed contract with its foundation or obtain and review available information that the foundations were required to have, such as the IRS Form 990. Auditors also identified certain questionable foundation expenses. In a follow-up, auditors found SUNY has made significant progress in addressing the problems identified.


In an examination of refunds and credits processed by the department from Jan. 1, 2018 through Dec. 31, 2018. Auditors returned 12,783 questionable or inappropriate refunds totaling $41.3 million to the department for follow up evaluation and appropriate action.  In addition, auditors returned 13,097 credits totaling $6.9 million to the department for follow-up and appropriate action.

New York State Comptroller Thomas P. DiNapoli Releases Audits


On September 24, 2019, New York State Comptroller Thomas P. DiNapoli announced the following audits and examinations have been issued.

Office of General Services (OGS): Compliance With Executive Order 88: Energy Efficiency of State Buildings (2018-S-62) OGS has developed targets and plans to contribute toward EO 88 and complied with the guidelines. However, OGS relied on one project to provide the majority of its energy savings. This project has met criticism from environmental and community advocates because of health concerns related to the burning of natural gas, and its implementation is currently in doubt. Should the project fail to move forward, it is unlikely that OGS will meet its goal of reducing energy usage by 20 percent.

An initial audit released in February 2018 found MCOs improperly paid $50.3 million to providers who were excluded from the Medicaid program or who were otherwise ineligible to receive Medicaid payments. Auditors also identified 22.5 million MCO claims (totaling over $2 billion) that lacked the provider identification information needed to assess the propriety of payments. In a follow-up, auditors found DOH officials made some progress in addressing the problems identified in the initial audit.

An initial audit issued in March 2018 examined the adequacy of state agencies’ continuity of operations planning for major unexpected events. Auditors tested a sample of 11 agencies, finding they had incorporated certain essential features of the COOP best practices endorsed by the division. Auditors also identified some opportunities for improvements. In a follow-up, auditors found the division implemented the recommendations in the original report.

Division of Housing and Community Renewal (DHCR): Enforcement of the Mitchell-Lama Surcharge Provisions (Follow-Up) (2019-F-9) An initial report issued in April 2018 found DHCR in general properly assessed surcharges at Mitchell-Lama housing developments, but there were significant deficiencies in the processes used. In a follow-up, auditors found that DHCR has made some progress in addressing the issues previously identified.

In general, ITS is monitoring IT services procured from consultants and contract staff to ensure compliance with contract terms and deliverables. For 14 of the 20 contracts reviewed, ITS provided adequate oversight to ensure that the contractor or consultant was fulfilling the contract. For the remaining six contracts, for which ITS paid out more than $156 million, there were deficiencies in contract monitoring – primarily of contractors’ reporting and documentation requirements.

Auditors identified 2,115 unemployment insurance overpayments totaling $788,487. Based on the findings, the department assessed penalties valued at $1,110,430 against certain claimants who received the overpayments. Auditors also identified 267 underpayments totaling $48,728.

An initial report issued in April 2018, found the department lacked policies and procedures to guide its complaint investigations, resulting in missing documentation, inconsistent application of the law, delayed investigations of state-operated facilities, and poor communication with complainants. In a follow-up, auditors found the department has made some progress in addressing the problems identified.

An initial report issued in April 2018, determined that preventive maintenance was not performed within the scheduled frequency levels set by MTA’s New York City Transit unit. Transit did not establish a timetable for preventive maintenance for intercoms passengers can use to obtain emergency assistance. Additionally, repairs were not always done on time. In a follow-up, auditors found the MTA made progress in addressing the problems identified.

An initial report issued in April 2018, determined that SIR did not always perform the inspection and maintenance of security equipment on a timely basis. In September 2017, SIR officials developed a new maintenance procedure for security equipment. However, it was unclear if the new procedure included customer assistance intercoms. In a follow-up, auditors found that the MTA made progress in addressing the problems identified.

Auditors performed certain procedures to ascertain the expenses the department incurred in administering the acts for the four State Fiscal Years ended March 31, 2018. On average, the department incurred $20.4 million in expenses to administer the acts for each year.

Bilingual is a New York City-based for-profit organization authorized by SED to provide preschool Special Education Itinerant Teacher (SEIT) services to children with disabilities who are between the ages of three and five years. In addition to the SEIT program, Bilingual operated one other SED-approved preschool special education program. For the three fiscal years ended June 30, 2015, auditors identified $370,685 in reported costs that did not comply with reimbursement requirements.

The TRA’s financial statements represent, in all material respects, the respective financial position of the TRA for the five fiscal years ending March 31, 2018.

Springbrook is an SED-approved special education provider located in Otsego County. Springbrook provides, among other programs, preschool special education services to children with disabilities who are between three and five years of age. For the fiscal year ended June 30, 2015, auditors identified $56,183 in ineligible costs that Springbrook reported for reimbursement. 

An initial audit released in February 2018 found SUNY should improve its oversight of campus foundations. For example, it did not ensure each campus had an executed contract with its foundation or obtain and review available information that the foundations were required to have, such as the IRS Form 990. Auditors also identified certain questionable foundation expenses. In a follow-up, auditors found SUNY has made significant progress in addressing the problems identified.


In an examination of refunds and credits processed by the department from Jan. 1, 2018 through Dec. 31, 2018. Auditors returned 12,783 questionable or inappropriate refunds totaling $41.3 million to the department for follow up evaluation and appropriate action.  In addition, auditors returned 13,097 credits totaling $6.9 million to the department for follow-up and appropriate action.

September 24, 2019

Telecommunications, Electromagnetic Fields, and Human Health


Recent news items revealed concerns about Electomagnetic Fields [EMFs], most recently from 5G antenna networks that are speeding up internet service in communities.  Below is the Abstract of an article prepared by Dr. Robert Michaels [bam@ramtrac.com], that was published in the Electromagnetic Claims Journal.

Abstract

Telecommunication generates electromagnetic fields (EMFs) at radio and microwave frequencies.  Transmitters have proliferated with siting of wireless communication networks, often co-located among other transmitters.  ‘Cell’ phones also have proliferated, representing small transmitters used in contact with human heads, and stored on human bodies.  Telecommunications equipment is ubiquitous, and EMF exposure prolonged, raising the issue of possible health risks.  Such risks, if any, must be managed.  For example, epidemiology studies reported higher exposure to analog cell phone EMFs among brain cancer patients than among controls, but those risks were ‘managed’ via replacement of analog phones with today’s digital phones, which have not been associated with human cancer.  

Challenges remain, recently from rodent bioassays that show dose-related association of lifetime exposure to cell-phone-type EMFs with heart schwannomas (cancers of schwann cells, which insulate nerve cells) in male rats, though not females.  Human cancer risk, if any, remains to be characterized and quantified, which partly will depend upon whether EMFs indeed are non-ionizing as has been assumed, and whether a threshold or non-threshold (genotoxic) mechanism caused the cancers in the male rats.  Health concerns have motivated further exposure reduction suggestions, and sometimes opposition to siting transmitters.  

Credible, objective explication of technical information to primarily non-technical audiences is necessary to support informed public participation and dispassionate weighing of telecommunications risks and benefits in community decision-making.  

Ultimately, experts and non-experts should adhere to the ‘precautionary principle’, requiring adoption of reasonably (but not excessively) pessimistic exposure and risk assumptions, whether or not they are likely to materialize.

The full text of article can be downloaded at no charge from ResearchGate.net via the following URL:

Authority to modify or vacate an arbitration award may be limited by the terms of a collective bargaining agreement


A collective bargaining agreement between the parties provided that if an employee was found guilty of charges involving an assault, the appointing authority had the power to set and impose a penalty.

An employee was charged with assaulting another worker. Found guilty of the charge, the penalty imposed by the appointing authority was dismissal. The union, on behalf of the employee, appealed the appointing authority's determination to the Tripartite Arbitration Board [Board] in accordance with the controlling contract disciplinary grievance procedure.

When the Board denied the grievance but modified the penalty imposed to a suspension rather than termination, the appointing authority filed an Article 75 petition pursuant to §7511 petition seeking to vacate the Board's action. The appointing authority contended that the Board had exceeded its authority when it modified the penalty the appointing authority had imposed.

Supreme Court agreed and vacated that portion of the award that modified the penalty imposed by the appointing authority. The Appellate Division subsequently rejected the union's appeal challenging the lower court's ruling. The Appellate Division said that a court could vacate an arbitrator's award for a limited numbers of reasons, including:

a. the violation of a strong public policy;

b. finding that the award was irrational; or

c. determining that the award clearly exceeded a specific limitation on the arbitrator's powers.

Here the Appellate Division found the limitation described in (c) above controlled as the collective bargaining agreement specifically provided that where the Board sustained the disciplinary charges, the penalty imposed by the Authority must be sustained as well.

Accordingly, the Court ruled that the Board, having sustained the assault charge, had no authority to modify the penalty fixed by the appointing authority -- termination of the employee.

The decision is posted on the Internet at:

September 23, 2019

Imposing the penalty of termination on an employee found guilty of misconduct following a disciplinary hearing overturned as "shocking to the conscience of the court"


A police officer was found guilty of misconduct after a disciplinary hearing. The Police Commissioner imposed the penalty of  dismissal. The Appellate Division modified the penalty imposed on the Petitioner by the Commissioner that resulted in the officer's termination and the forfeiture of his retirement benefits "on the law" and remanded the matter to the Commissioner "for determination of a lesser penalty."

Petitioner had admitted to the theft of $20 from an undercover officer illegally parked near a hydrant and acting intoxicated in the course of an integrity test* targeting Petitioner's partner. Evidence supported the finding that Petitioner also made false statements in the course of an official investigation in violation of the Police Department's Patrol Guide.

Although the Appellate Division concluded that there was no basis to disturb the credibility determinations of the Hearing Officer, it found that "under the circumstances presented here," the penalty of termination and forfeiture of [Petitioner's] pension "shocked the court's conscience and sense of fairness" and thus violated the so-called Pell Doctrine.**

The court opined that the question of whether a penalty is so disproportionate to the misconduct as to shock the conscience requires a case by case factual analysis and found mitigating factors that required it to vacate  the penalty of dismissal and the deprivation of Petitioner's right to his accrued pension. The Appellate Division characterized such a disciplinary penalty as an "affront to our sense of fairness" and "shock[s] the conscience" by the Appellate Division.

Considering mitigating factors, the majority of the court,*** conceding that Petitioner's conduct was "troubling," concluded that Petitioner's misconduct "was an aberration from his otherwise exemplary career," noting that Petitioner:

1. Had nearly twenty years of police service with the Police Department, prior to which he served in the United States Army for eight years where he was a sergeant in the military police, receiving an honorable discharge;

2. During his tenure with the Police Department, Petitioner had no formal disciplinary history, and received a total of 38 medals for "Excellent Police Duty" and "Meritorious Police Duty;" and

3. The loss of Petitioner's pension would work a financial hardship on his wife, who is diagnosed with cancer, and their now 10-year-old daughter.

* An integrity test places a police officer in a lifelike scenario to ascertain whether the officer would act in accordance with the law and Police Department policies.

** Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222, generally referred to as the "Pell Doctrine."  Essentially the Pell Doctrine instructs that any permissible disciplinary penalty may be imposed on an employee found guilty of one or more disciplinary charges and specifications by an appointing authority or arbitrator unless the court finds that, considering the circumstances underlying the disciplinary action, such a penalty is "shocking to one's sense of fairness."

*** Judges Richter and Kern dissented in part in a memorandum by Judge Richter, concluded that in view of Petitioner's "on-duty theft of money and his subsequent false statements, both of which are offenses involving moral turpitude, the penalty of termination is not so disproportionate to the offense as to shock one's sense of fairness."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_06568.htm


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A Reasonable Disciplinary Penalty Under the Circumstances

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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